Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Friday, July 31, 2009

Closing arguments in Sony v. Tenenbaum

BY MARC BOURGEOIS

Defendant

Professor Nesson began his closing by telling a story about his first court case. He said that he was cited for a left turn violation in Cambridge. He went to court, plead guilty and was fined $20, and the judge told him he had the right to appeal. He appealed and the judge sent him aside and waited for all of the other proceedings to complete. The judge them called him up and asked why he plead guilty then appealed. He said that he thought $20 was too much for a left turn. The judge laughed and told the clerk to cut it to $10. He said this was his first victory in court.

He said that the case was about damages, and about the justness of the damages to be awarded by the jury to the Plaintiffs. He argued that just had to do with justice and that the punishment fit the crime. He told the jury they were the root of the people in the justice system.

He placed on the document camera for the jury a copy of the jury instruction about statutory damages. He explained that the Plaintiffs did not have to prove actual damages but were entitled to statuatory damages as they, the jury, considered just.

He then began talking about the testimony of Dr. Liebowitz and his testimony that open sharing resulted in a decline in revenue for the recording industry. He stated that peer to peer networks rapidly changed the music industry. He said that progress happens. Joel Tenenbaum is not on trial, not peer to peer networks. He argued the damage was what Joel did and what the appropriate response.

He then began to talk about parenting, and sharing being one of the first things parents teach their children. He asked the jury to imagine a parents job and went into a bit of detail. He said that music is something children naturally share, they sing songs together, and share music. He then said that parents must go on to teach their children about property. He explains that the concept of property is easy to grasp with real property. When something is taken away from one person they no longer have it, that the taking away is a trespass. He explains the difficulty of teaching children about intellectual property.

He went back to the Jewelry store analogy offered by Dr. Liebowitz. During Dr. Liebowitz's testimony he mentioned that one possible way the Jeweler's property rights could be weakened is if Captain Kirk came by and said "Scotty beam me up some jewels". Professor Nesson likened this to file sharing and said it was like "Scotty beam me up some free music". He explains that parents are expected to teach about intellectual property but it is a hard thing to explain and even harder to police.

Professor Nesson then turned to Dr. Liebowitz's sports analogy in comparing the weakening property rights to less professional music being produced. He stated he didn't completely agree with his characterization of professional always being superior to amateur and gave the example of March Madness often being more interesting and compelling that seeing a Celtics game. He states he's not completely sure we are better off if there is more professional music being produced, but explains that we are perhaps better off with more overall music.

He then turned to the testimony of Mr. Wilcox. Mr. Wilcox stated how the music industry struggled encasing their product in encryption and explained that Mr. Wilcox used the term "compatibility". He explained that the consumer didn't want encrypted music, but wanted something that was compatible with all of their devices and could be used. Professor Nesson argued in a sense that the market demanded the mp3 format, but that it wasn't available from the music industry until 2007. He argued it was not the case in 2004 that the recording industry had a comparable product to the free mp3. He said that that didn't necessarily mean that Joel would have paid for this product in 2004, but maybe he would have.

Professor Nesson explained that Mr. Wilcox's story about the industry moving from a CD environment to a digital environment and explained that it was in a way a story that paralleled Joel's, moving from a skateboarding kid to where he is now in the process of coming of age. He asked the jury who should be blamed for the difficulty that the internet presented them.

He then moved to the damages component. He asked the jury to consider the nature of the infringement. He explained many levels of infringement from the top end criminal counterfeiting syndicates to the middle ground people who did it to harm the recording industry but made no money, down to the people like Joel who made no money and had no intention of hurting the recording industry.

He explained that this was a civil case and the first time Joel had been to court. He likened it to other first time civil offenses such as underage drinking, and smoking marijuana.

He returned to the jury instructions on what they could consider in awarding damages. He went through all of the factors listed, but spent the most time on purpose and intent and the profit/saved expense of the defendant. He argued that the purpose and intent was to enjoy free music and had no maliciousness. He stated that there was no profit by Joel and only potentially the slightest saved expense. He argued that the harm caused specifically by Joel was low, because if Joel had gone offline there would have been thousands of other copies of these track available for others to download. He argued that Joel was not the original seeder of these files and his absense would not have deterred anyone from getting these files from peer to peer networks.

He referenced revenue numbers by Plaintiffs, but stated that the value of the copyright to the lay person, Joel, was what the songs could be purchased for $.99.

Professor Nesson offered the jury the proposition that Joel was addicted to free music and didn't want to leave it since he already has a functional method of paying for music. Professor Nesson then explained the PR campaign. He said that Joel recieved the message by PR in increments until it eventually sank in and he stopped his conduct. He explained that it was up to the jury to determine if that plays in to the damage.

He then explained the factor of deterrence the jury could use in deciding the award. He argued that there was no need to deter this defendant any more and that the Plaintiffs were looking for a deterrent effect to target a generation. He argued that they were not in this for the money since they had testified that they lose money on this campaign.

He said that this wa a federal case about a kid in his bedroom on a computer screen. He argued the the recording industry was trying to send a message to all of the Joels in the world. He used an economics analogy and said that if you had a situation where there was a lot of parking violations but only one police officer who could not enforce them all and economist would argue for a very large penalty on one, so that others will be deterred and frightened to violate the law. He argued that this is what the Plaintiffs are attempting in this case but that it would not be justice.

The asked the jury then to consider other factors in the award. He asked them to consider the arbitrariness in selection of Joel by MediaSentry. He asked the jury to consider the arbitrariness in the selection of the number of songs to pursue in this case. He asked the jury to consider the fruitlessness of this campaign that had gone on for several years and was now at a dead end.

He asked the jury to consider justice in the bottom line of their verdict form. He told the jury that if the number at the bottom of the form is appropriate then they are doing there job, and if it isn't then they didn't do their job.

Professor Nesson then explained the form and told the jury that if they thought it was just they could fill in zero for the amount of damages. This statement was objected to and the objection was sustained.

He used an analogy for a punishment a parent might set out if they caught their child smoking cigarettes. They tell their child if they are caught that they will be fined $10. He says that the parents later find and empty pack of cigarettes with their child, and a pack with only ten cigarettes left. He asked if the parent should charge $10 or say that there were 30 cigarettes smoked and charge $300.

He told the jury that it was for them to decide justice and reminded them that it was not Joel who created the open internet or peer to peer.

He told the jurors that Plaintiffs were going to ask them to send a message. He asked them to send a different message.

He then closed by telling the jurors that it was the last he was going to be able to speak to them and told a story. He said that a child went to an old wise man with a bird in his hand and asked the man if it was dead or alive. The man knew that if he said the bird was alive the child would crush it and if he said it was dead he would open his hands and have it fly in his face so he simply told the child that "the bird is in your hands". He then told the jury that this case was in their hands.

Plaintiffs

Mr. Reynolds began by thanking the jury for their service and commended Professor Nesson for being a very eloquent speaker especially with very few notes. Mr. Reynolds also wanted to tell a story about his first interaction with the law. He stated he was not as successful as Professor Nesson. He explained that he store a Charms Blow Pop from a 7-11 when he was a child. He was taught a lesson by that event that he was not supposed to take.

He argued that Defendant said this case was about a new digital world, but that none of that was true. He explained that the Defendant had lied on his written responses and he knew what he was doing, and that he had refused to take responsibility for years before finally admitting responsibility yesterday. He submitted to the jury that they had proven all four elements for copyright infringement and that the infringement was willful. He stated that the Plaintiffs had the burden of proof but he believed they had more than met that burden. He stated that there was evidence of his willfulness in his repeated warnings, starting from when Napster was shut down, the information he received from his college, and his father telling him to stop the activity.

He then turned to the issue of sharing. He said that this was not sharing, this was copying. He said that he was warned in a 2005 letter of this activity and its harm. Mr. Reynolds argued that he did not stop or consider, but rather increased his activities after this. He offered the evidence that the Defendant had moved from one file sharing application to another because he wanted to get the most free music with the least amount of effort.

He then argued that in some instances the Defendant acted the same was as a pirate ripping group with the example of the Deftones David Letterman performance he recorded and placed on to KaZaA. He also stated that Mr. Tenenbaum "Seeded Network Neighboorhood" at his college with music. He also offered the evidence of Defendant having Windows reinstalled on his computer by Best Buy after he knew Plaintiffs were trying to inspect his computer as evidence of Defendant's continuing disregard.

He turned to Mr. Nesson's argument that he was a first time offender, but argued that he was not a first time offender but in fact had been doing this for years and continued for years afterwords. He then said that Defendant had for years failed to tell the truth in this case. He lied on written responses, he lied when he told Plaintiffs that the computer from his bedroom in Providence was gone.

Mr. Reynolds argued that the Defendant had blamed others and wasted time and effort with lies and misdirection. He told the jury that the Defendant still had copies of the songs, and that this entire time he has never said that what he did was wrong.

He then argued about the assertion that the Defendant was just a kid. He said that Defendant had turned 19 in 2002 and had been an adult the entire time this case was taking place. He argued that his infringing activities continued until Defendant was at least 24 years old. He furthermore argued that his conduct became worse year after year as he became older. He pointed to evidence from Dr. Jacobson that there were days when hundreds of files were added to his shared folder.

Mr. Reynolds then claimed that Defendants assertion that everyone was doing it was false. He pointed to the deposition of his friends, and the student government movement at Goucher college that not everyone was engaging in this type of activity. He referenced Mr. Wilcox's testimony that there were alternatives available to Joel, but he still infringed. He said that Joel wanting music in a more convenient form is no evidence of addition and even if it was that it was no excuse for his actions.

Mr. Reynolds made the argument that the law had no distinction between products of atoms and bits for the purpose of copyright infringement. He turned to the twenty-five files that MediaSentry didn't download. He pitied Dr. Jacobson's numerous awards and activities and again stated his opinion that all twenty-five files were downloaded and distributed by the Defendant's own admission.

He then told the jury that Joel made them all come to this trial, and made many people spend months of effort just so that he could get here and say yes, he did it. He likened this to a wild goose chase.

He asked the jury to apply appropriate liability and award damages to what Joel did. He argued that he distributed music for free and that the harm was significant. He said that this kind of activity made it difficult for his clients to develop new online markets, and cited Dr. Liebowitz's testimony that it weakened their property rights. He cited the executive testimony that the effects on staff were large. He stated that the need for deterrence was great and told the jury that he agreed with Professor Nesson that the amount of the award was in their hands. He asked the jury to hold the Defendant responsible for his actions.

6 comments:

As a layperson with some understanding of logic, Nesson's closing argument is the first thing I've seen that has made any sense at all from him, though I doubt its likelihood of success. It sounds like he is trying to argue for jury nullification of the statute and set the stage for a consitutional challenge on damages. The thing that makes me sick about it, though, is that in this case, the client would have probably been better served by just settling. I'm sure there are plenty of others who actually didn't (knowingly) engage in file-sharing who could have made better use of a trial and of pro bono counsel than Tenenbaum.

It doesn't sound like the plaintiff is really arguing for a huge award here, even if "willfulness" is mentioned. If I forgot that I knew anything at all about law or copyright and read the (erroneous) jury instructions, I would be inclined to award $750/song. Granted, in real life, I wouldn't have been selected for the jury, and I really think the damages should be far lower. I'm preaching to the choir, though.

I would be very worried about having a Harvard professor present closing arguments for me before a Boston jury at a time when Professor Gates' stupid behavior toward the police is fresh in the jurors' minds.

I've done quite a bit of work for the recording industry. Several well-known labels. Major projects.

The move from atoms to digits has changed the economy, human behavior, marketplaces and consumer perception of what's valuable and what's not. There's no going back. (See Detroit, Wall Street, mainstream journalism, prime time television.) The music industry's misdirected attempts to adapt are well-documented. They're on the same glide path as Polaroid, one where corporate egos of aging chem-happy chieftains got the firm's digitally-savvy insiders a seat on the next train out of town. Polaroid's execs walked themselves and a once-great firm from the rut into the grave. Pathetic, short-sighted, selfish behavior. They didn't know what they didn't know and they were adamant about it. Especially remarkable considering they had monetized the very concept of instant! Now the old gang at the record labels are reprising Polaroid and trying to outwit the young digital music crowd. Good luck. The aging execs would have better luck starting a boy band. They could embrace Tenenbaum and others to figure out a variety of approaches but they won't. Retirement is just ahead. They can squeeze out a couple more years, do nothing, and make it to retirement fully vested.

That's the industry. The bigger question is how the law should make a graceful and fair transition for all things that have gone from atoms to bits. Should laws established in the old-school atom-based marketplace and atom-based economy be applied in full force to the digital world we now inhabit?

Right now it appears that the recording industry has won a victory based on legacy laws and legacy valuations. They should consider themselves lucky. But it won't last. Not with the trajectory the economy is on. This Tenenbaum case is a precedent that will wither on the vine because reality will beat it down.

That's point one. The other is the moral question. Ask any successful musician what they think of the economic model and fairness of the major labels. Misunderstandings abound. Emotions get heated fast when it comes to the question: Do labels pull their weight? Not for nothing the touring music acts put stupid riders into their contracts like "only blue M&Ms on a five-tiered angel food cake." It's revenge, petty payback for years of systemic abuse by an industry that only lets a few of the field workers into the house.

So what could be done? Imagine a class action suit where all recording artists file for damages based on decades of systemic misrepresentation of risks and rewards dished out by the industry labels. Imagine that the industry were forced to open its books and reveal how all the dollars flow in reality from legions of artists to various bloated departments within the industry and for what purpose.

If the industry were put on trial for professional behavior and accounting ethics it would likely come up short. And the damages could be awarded to bands who died due to behaviors by the industry that protected the big established bands already on that label. Or perhaps the industry would admit to itself that's it's contributed to its own predicament and perhaps it would decide, unilaterally, to accept a payment of one cent from Tenenbaum.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove